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Mark
Armour May 25, 2004 Bush v. Brown When
President Bush is asked about his role as a
potential anointer of Supreme Court justices, he has repeatedly expressed his preference for strict constructionists, and for
judicial restraint, often spitting out the words “liberal
activist judges” like a string of expletives.
Setting aside the fact that he likely doesn’t know what the term
“strict constructionist” actually means, Bush has not yet been called
upon to exercise this appointment power, for which we should be
temporarily thankful.
On May 17 George Bush traveled to Topeka, Kansas, to help mark the
fiftieth anniversary of the landmark Supreme Court ruling outlawing segregation in
public schools, a decision which essentially launched the Civil Rights
Movement. He visited
Monroe Elementary School, whose efforts to exclude black students helped
lead to the Court’s ruling, involving several different cases but generally known as Brown
v. Board of
Education, Topeka. Standing
amidst a crowd of mainly white faces, the president praised the wisdom of
that earlier court: “Fifty years ago today, nine judges announced that
they had looked at the Constitution and saw no justification for the
segregation and humiliation of an entire race.”
What George Bush did not say, what he could not say, is that the 1954 ruling was the epitome of liberal judicial activism.
George W. Bush’s spiritual forebears, the conservatives of the
1950s, despised the Brown decision, and despised the jurists who
rendered it, especially Earl Warren, the Chief Justice and the opinion’s
author. President Eisenhower,
a moderate Republican, called his appointment of Warren “the biggest
damn fool thing I ever did.” William H.
Rehnquist, the current Chief Justice and the embodiment of Bush’s
beloved judicial restraint, was in 1952 a clerk to Justice Robert Jackson.
In a memo he wrote to Jackson during early deliberations on the
case, Rehnquist advocated ruling against Brown: “I think Plessy
v. Ferguson was right and should be re-affirmed.”
This opinion did not keep him from being appointed to the Court by
Richard Nixon or to the Chief’s chair by Ronald Reagan; in fact, it
probably helped him. Is there
any doubt how Antonin Scalia would have stood?
If George W. Bush had been able to appoint the judges who served on the 1954 court,
the verdict would have been far different, and the civil rights movement
would likely have been long delayed and much bloodier.
Were Bush a bit more honest, he would have pointed out that the
Brown ruling illustrates precisely why the court occasionally needs
to take an activist role in making the law.
Judicial restraint is all well and good, but when the fabric of the
country has become polluted with hate, with the official sanction of the courts,
it might be time to rethink your philosophy.
Widespread segregation in the United States, and especially in the South,
had been legitimized in the Supreme Court’s historic 1896 ruling in Plessy
v. Ferguson, which upheld a Louisiana law requiring “separate but
equal” accommodations on trains. Although
the court’s 7-1 majority opinion was convoluted and petty, Justice John Marshall
Harlan wrote one of the court’s most famous dissents, arguing that the
“the thin disguise of ‘equal’ accommodations for passengers in
railroad coaches will not mislead anyone, nor atone for the wrong this day
done.” Unfortunately,
Harlan proved prophetic, as Plessy led to more than a half century
of oppressive, and completely legal, racial segregation in the South.
Beginning in the 1930s, the NAACP organized a series of suits, at both the
state and national level, which challenged the constitutionality of
segregation laws. Although
there were a few isolated successes, largely in cases where courts ruled
that the separate accommodations in question were not actually “equal,” it
wasn’t until 1950 that the Supreme Court first started to crack,
invalidating separate facilities for law schools (McLaurin v. Oklahoma)
and graduate schools (Sweatt v. Painter).
Notably, the court not only cited the lack of equality in
facilities, but also explicitly disapproved of the intangible harms of
segregation—the inability of black students to associate freely with
their white colleagues.
The Brown case, which dealt with the nation’s system of primary
and secondary schools, wound its way up to a deeply divided Supreme Court
in late 1952. Most observers
believe that had the case been decided in that first session it would have
either failed or perhaps eked out a hopelessly vague 5-4 ruling.
With no hope for any consensus, Justice Felix Frankfurter urged
delay, hoping for a more solid majority in the next session.
In September 1953, as the court prepared to reargue the Brown case,
the unsympathetic Chief Justice Fred M. Vinson suffered a heart attack and
suddenly died, an event Frankfurter would call “the first indication I
have ever had that there is a God.”
His replacement as Chief was California Governor Earl Warren, a man
who had never served as a judge in his life.
Warren grew up in Bakersfield, attended California-Berkeley and its law
school, and spent eighteen years as a decorated district attorney in
Alameda County. From 1938 to
1942 he was California’s Attorney General and he spent the following ten
years as an extremely popular Governor.
His most famous legacy in his home state was his role in the forced
evacuation of Japanese-Americans from the West Coast during the Second
World War.
Warren made a brief run for the presidency in 1952, before helping
Eisenhower get elected. In
gratitude, Ike promised Warren an appointment to the first vacancy on the
Supreme Court. When Vinson
died, Eisenhower tried to reason that the office of Chief was a bit more
than he had intended, but Warren was firm and got the post. Warren was a respected Republican, and observers were encouraged
that his
moderation might temper the factions on the court.
The factions were never so apparent as when considering school
desegregation. Only the
court’s two mavericks, Hugo Black and William O. Douglas, could be
counted on to find for Brown.
There were two southerners on the bench (in addition to the
reformed Black) who were openly partial to Plessy’s principal of
“separate but equal." Of equal
importance, the court had long been reluctant to extend its powers into
the realm of state and federal legislatures.
Felix Frankfurter, notably, was a political liberal who nonetheless
struggled to find a doctrinal foundation for his opinions, a struggle that
plagued him as he considered the merits of the Brown cases.
Earl Warren had no such struggles. Segregation was obviously wrong, and needed to be struck down.
Armed principally with a sense of justice and an ability
to lead, he soon determined that “it seemed to me a comparatively simple
case.” (A case, it should
be noted, that the court wrestled with for eighteen months.)
Speaking later to the notion of judicial restraint, Warren was
clear: “For a long, long time we have been sweeping under the rug a
great many problems basic to American life. We have failed to face up to them, and they have piled up on
us, and now they are causing a great deal of dissension and controversy of
all kinds.” Setting aside several decades of precedent, Warren
quietly and patiently went to work on his eight fellow justices.
On May 17, 1954, the court convened to announce its verdict in several
pending cases. After
disposing of some lesser business, Warren turned to the Brown ruling,
opting to read the opinion of the court.
After summarizing the arguments in the case, the Chief posed the
only relevant issue: “We
come then to the question presented.
Does segregation of children in public schools solely on the basis
of race, even though the physical facilities and other ‘tangible’
factors may be equal, deprive the children of the minority group of equal
educational opportunities?" Only then, two-thirds of the way
through the opinion, did he reveal the answer: "We
believe … unanimously … that it does.”
The ruling was not a complete surprise, but the lack of even a
single dissent was stunning. The decision was a mere 10 pages, and was written in plain succinct
English. Warren wasn’t
tremendously concerned with the fact that he was overthrowing Plessy
and six decades of court decisions. He
didn’t try to criticize the prior cases, or even to condemn the
culture he was tearing asunder. Events
had lade bare the deleterious impact the rulings had on black Americans,
and that was sufficient reason to reject them.
“Separate” and “equal” were incompatible concepts.
Earl Warren went on to serve 15 years as Chief Justice, leading the
most activist court in our nation’s history.
Nothing would ever match the Brown decision in importance, but
his court
made many important rulings that protected the rights of the accused in
criminal cases (notably requiring a court-appointed lawyer for indigent
defendants, requiring that a defendant be informed of his legal rights,
and disallowing illegally obtained evidence), expanded free speech
protection, and broadly defined a right to privacy.
All of which George Bush would have hated.
Of the many aggravating things conservatives do, among the most
egregious is their continual heisting of progressive achievements,
recasting them as heroic patriotic deeds.
Fifty years ago, George Bush would have been calling for Earl
Warren’s impeachment, as many conservatives did.
President Bush would not appreciate another irony in his preference for
strict constructionists. He
owes his presidency to a Supreme Court decision that, in the words of Yale
law professor Akhil Reed Amar, “failed to cite a single case that, on
its facts, comes close to supporting its analysis and result.”
The five most conservative justices, who would ordinarily be loath
to overturn a lower court without clear constitutional justification,
reversed the Supreme Court of Florida and halted the counting of all
disputed ballots in the state. Justice
Scalia, whose son was a member of Bush’s legal team, said that the
recount would "threaten irreparable harm to petitioner (Bush) ... by
casting a cloud upon what he claims to be the legitimacy of his
election." So much for
judicial restraint. The successes of liberalism (universal public education, public universities, women’s suffrage, public water and sewer systems, organized labor, child labor reform, the minimum wage, the forty-hour work week, workplace safety, social security, rural electrification, insured bank deposits, food safety standards, public radio and television, civil rights for African Americans, Medicare, equal opportunity for women, clean air, clean water, environmental protection, and expanded rights for the disabled, to name just a few handfuls) are largely responsible for the creation of the American middle class and an awful lot of things most of us take for granted. None of these things was achieved without a struggle, and right-wing reactionaries fought all of it, and more, in the name of conservatism or judicial restraint. The next time there is a party celebrating one of these achievements, let us hope George Bush has the decency to stay home.
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